Civil Rights and Liberties

GLOSSARY

Affirmative actionA
policy or program that seeks to ensure that all people have equal
opportunity, as in education and employment.

Civil rightsThe
nonpolitical rights of a citizen, especially the rights of personal
liberty guaranteed to U.S. citizens by the 13th and 14th amendments
to the Constitution and by acts of Congress.

Civil unionLegal
agreement granting recognition and relationship rights that mirror
many of those granted through marriage.

Domestic partnershipA
documented living arrangement in which same-sex and unmarried opposite-sex
partners register as a couple in order to obtain such municipal
or employer benefits as health insurance, library privileges, or
housing eligibility.

Hate crimeA criminal
act provoked by the actual or perceived race, color, national origin,
ethnicity, gender, disability, or sexual orientation of the victim.

Racial profilingGenerally,
the practice of using race or ethnicity as an indicator of criminality.

BACKGROUND

[APRIL 1, 2002] The basic function of civil rights
legislation in the United States has been to protect minorities
from the tyranny of discriminatory treatment by the majority. In
general, the federal laws set minimum standards; states are free
to set higher but not lower standards of inclusion.

The civil rights movementthe most publicized
and political civil rights struggle of longest standing in the United
Statesconcerned the status of the nation's black minority
and resulted in federal legislation that improved the status of
ethnic and religious minorities, women, and immigrants. The first
federal civil rights law since Reconstruction was enacted in 1957
and established the Commission on Civil Rights in the U.S. Department
of Justice. A 1964 federal statutethe Civil Rights Actspecifically
outlaws race-based discrimination in public accommodations and by
employers, unions, and voting registrars. It also applies to gender-based
discrimination against women (women had won the right to vote in
this country only 44 years earlier). The federal Indian Civil Rights
Act of 1968 gives Native Americans access to the courts for restoration
of rights to their ancestral lands and reparation for lost land
and natural resources.

The Michigan Civil Rights Commission was formed in
1963, when guarantees against discrimination were added to the Michigan
Constitution. Article V, section 29, mandates that the commission
investigate discrimination against any person because of religion,
race, color, or national origin, and secure the equal protection
of such civil rights without such discrimination. This is
unique in the nation: Only in Michigan does a state agency have
a constitutional (as opposed to legislative or regulatory)
mandate to eliminate unlawful discrimination in nearly all aspects
of public life.

The Michigan Department of Civil Rights (MDCR) was
established by legislation in 1965 to provide the staff needed to
implement the policies of the Civil Rights Commission. The department
is authorized under the Elliott-Larsen Civil Rights Act (Public
Act 453 of 1976, as amended) and the Persons with Disabilities Civil
Rights Act (P.A. 220 of 1976, as amended) to receive and investigate
complaints based on unlawful consideration of religion, race, color,
national origin, sex, age, marital status, physical or mental disability,
arrest record, or retaliation in the areas of employment, education,
housing, public accommodation, or public service (government). In
addition, complaints may be based on unlawful consideration of height,
weight, and arrest record in employment matters as well as unlawful
consideration of family status in housing matters.

Affirmative Action

The phrase affirmative action first was
used in President Johnson's 1965 Executive Order 11246, requiring
federal contractors to take affirmative action to ensure that
applicants are employed, and that employees are treated during employment,
without regard to their race, creed, color, or national origin.
An important Constitutional issue causing fairly continuous public
controversy has been whether and to what degree public and private
institutions may use affirmative action to help members of minority
groups obtain jobs or schooling.

Marriage/Union/Registration

Marriage

In the United States, marriage is a restricted institution
in which only one man and one woman may be joined. There are 1,049
federal statutes governing benefits, rights, and privileges for
such legally married couples, and every state has up to 350 similar
laws. Currently, none of these laws provides protection for same-sex
couples in domestic partnerships.

Same-sex marriage is not legal anywhere in the country,
and about 35 states, including Michigan, have enacted defense-of-marriage
acts (DOMAs) that ban it; six have similar legislation pending.
The federal DOMA (1996) holds that marriage benefits are exclusively
reserved for opposite-sex couples and permits states to ignore same-sex
marriages sanctioned elsewhere.

The only place where gay and lesbian couples may marry
and adopt with the full privileges enjoyed by heterosexual married
couples is The Netherlands. Same-sex marriages were legal briefly,
during 1996, in Hawaii, but Hawaiians passed a constitutional amendment
prohibiting them.

Civil Union

DOMAs do not preclude a state from enacting laws covering
a different type of relationshiptypically called a civil unionfor
same-sex couples. A civil union formalizes a same-sex relationship
and may grant to same-sex couples some or all of the state benefits
previously granted only to married couples, but the more than 1,000
federal rights and privileges are withheld from civil-union couples.
No current civil-union plan offers the broad responsibilities, benefits,
and legal and social protections that marriage does. In Vermont,
legislation established a civil-union system in 2000 that offers
to the partners the rights, obligations, and benefits that the state
gives to heterosexual married couples. California is considering
such legislation.

Domestic Partnership

Another means by which gay, lesbian, or unmarried
heterosexual couples may obtain some of the legal benefits offered
by marriage is through domestic-partnership registration and affidavits.
More than 100 municipalities nationwide, including Ann Arbor and
East Lansing, offer such registration, allowing opposite- and same-sex
couples to go on public record as a non-married couple. The primary
benefit of registering is to document the relationship so as to
establish eligibility for partner benefits from an employer or municipality.
Some employers (e.g., Ford Motor Company, DaimlerChrysler, General
Motors, IBM, Walt Disney, Northwest Airlines) offer domestic-partner
benefits to their workers if they sign an affidavit that defines
an economic relationship. Michigan State University, the University
of Michigan, and Wayne State University also offer benefits to employees'
domestic partners.

Hate Crimes

Congress defines a hate crime as one in which the
defendant intentionally selects a victim because of his/her actual
or perceived race, color, national origin, ethnicity, gender, disability,
or sexual orientation. The federal Hate Crime Statistics Act of
1990 asks states and municipalities to voluntarily report all such
crimes to the FBI. The federal Hate Crimes Sentencing Act of 1994
provides for tougher sentencing in federal courts when it is proved
that the offense was a hate crime. In Michigan, the Ethnic Intimidation
Act of 1988 added to the state penal code the crimes of physical
contact, destruction of personal property, or the threat of either
with malicious intent based on the victim's race, color, religion,
gender, or national origin.

Racial Profiling

Although racial profiling is a relatively
new term and does not yet have a single, universally accepted definition,
it generally refers to the practice of using race or ethnicity as
an indicator of criminality. The most familiar instance is what
some have dubbed driving while black, or DWB. Such profiling
occurs when law-enforcement officers stop minority motorists for
minor traffic violations, but the stop really is a pretext to search
for drugs or other contraband in the vehicle or to harass the occupant(s).
The most common context in which racial profiling occurs is traffic
stops, but there are others, including

airport checks and searches of people/luggage by
airport security or drug enforcement officials;

questioning and searching pedestrians in public
places (usually in urban areas);

immigration-status checks of people crossing national
borders; and

ID checks of bar or club patrons.

Sexual Harassment

Sexual harassment is a form of discrimination prohibited
under federal law: Title VII of the federal Civil Rights Act of
1964 and the Violence Against Women Act of 1994. Court cases have
sorted sexual harassment into two basic categories.

Quid pro quo harassment occurs when the
perpetrator makes an aspect of employment (hiring, promotion,
retention, and so on) contingent on the victim's providing sexual
favors.

A hostile work environment is deemed to
be the case when, as defined in a unanimous 1993 U.S. Supreme
Court opinion, there is a certain frequency and severity of discriminatory
conduct, it is physically threatening (not a mere offensive
utterance), and it unreasonably interferes with an employee's
work performance.

Sexual-Orientation Discrimination

Starting in the 1960s, Congress passed a number of
laws designed to eradicate discrimination and prohibit employers
from basing employment decisions on stereotypes or assumptions about
the ability, traits, or performance of individuals with a disability
or of a certain sex, race, age, religion, or ethnic group, but no
federal law prohibits discrimination on the basis of sexual orientation.
Although Michigan is not among them, 21 states and the District
of Columbia prohibit public-employment discrimination based on sexual
orientation; 12 states and the District extend this protection to
the private sector. In Michigan, employers are not prohibited from
firing or refusing to hire or promote an employee based on a perception
of the employee's sexual orientation.

DISCUSSION

Affirmative Action

Affirmative action was meant to redress a long history
of racial and gender discrimination in the United States. In the
past decade, however, the concept seems to incite, rather than ease,
the nation's internal divisions. An increasingly assertive opposition
movement argues that the battle to guarantee equal rights for all
citizens has been fought and wonand that favoring members
of one group over another goes against the American grain. Defenders
of affirmative action say that the playing field is not yet levelthat
granting modest advantages to minorities and women is more than
fair given the historic discrimination that benefited whites and
men.

Currently, a particularly contentious issue is whether
considering race in higher-education admission decisions may be
used as a means to achieve student-body diversity. Race-based admissions
policies, supported by the U.S. Supreme Court's landmark 1978 decision
in University of California v. Bakke, have been under
legal attack for a decade. Most recently, two lawsuits have been
brought against the University of Michigan (UM) for using race as
a factor in undergraduate and law school admission. In December
2000, the UM's undergraduate admissions policy was upheld, but four
months later its law school admissions policywhich is only
slightly differentwas struck down. The two cases, consolidated
for appeal, were heard in December 2001 by the 6th U.S. Circuit
Court of Appeals, which had not ruled at this writing. Regardless
of the outcome, the case is expected to go to the Supreme Court.

Anti-Terrorism Efforts

Immediately following the September 11, 2001, terrorist
attacks, anti-terrorism legislation was introduced at the federal
and state levels. The federal USA PATRIOT Act of 2001 was signed
into law on October 26, 2001, and

allows investigators to use roving wiretaps (following
a suspect rather than tapping just a particular phone);

gives the government the power to detain immigrants
for up to seven days (increased from two days) if they are suspected
of being involved with terrorists;

triples the number of immigration and border-patrol
agents along the 3,000-mile border with Canada;

provides new tools to fight money laundering by
terrorists;

allows government agencies to more easily share
information about suspects and track their communications; and

increases penalties for terrorism-related crimes.

On the three-month anniversary of the terrorist attacks,
the Michigan Legislature introduced the Michigan Anti-Terrorism
Act, a package of legislation to fight terrorism, improve public
safety, and strengthen the state's response to emergencies. The
more controversial measures would increase law enforcement's authority
to investigateincluding use of wiretapsterrorist threats.
Most of the bills have been enacted (among the exceptions are the
wiretap measures).

Civil rights organizations such as the American Civil
Liberties Union (ACLU) of Michigan and the NAACP strongly opposed
the USA PATRIOT Act because they believe it infringes on civil liberties.
These organizations believe that the act undermines due process
and point out that it gives law enforcement extraordinary new powers,
including telephone and Internet surveillance, unchecked by meaningful
judicial review. The organizations also have expressed serious reservations
about the Michigan anti-terrorism measures, arguing that they raise
questions about the Constitutional guarantees of the Sixth Amendment
right to counsel for criminal suspects and the Fourth Amendment
right to be free from unreasonable search and seizure. Editorials
in the Detroit Free Press and Detroit News have commented
that some of the state's efforts to address terrorism may be unnecessary
due to the federal action that has been taken.

Sexual-Orientation Discrimination

The Employment Non-Discrimination Act (ENDA), which
had been introduced in Congress in various forms in the four previous
sessions, again was introduced in 2001. It would extend current
discrimination protections to sexual orientation. Similar legislation
in Michigan (HB 4661) would amend the Elliott-Larsen Civil Rights
Act to define and include sexual orientation (perceived or actual
orientation toward heterosexuality, homosexuality, or bisexuality)
as a protected category.

Opponents, such as the Family Research Council, believe
that such legislation would give homosexual and bisexuals special
rights, equate their orientation with heterosexuality as being
normal, criminalize free speech, threaten religious
freedom, and encourage lawsuits that could bankrupt small businesses.
Supporters, such as the Human Rights Campaign and the ACLU, contend
that affording to all citizens basic employment protection from
discrimination based on irrational prejudice is not a special right.
They point to a 1999 Gallup study that reports that 83 percent of
Americans believe that gay people should have equal job opportunities
and that more than half of the Fortune 500 companies have passed
nondiscrimination policies that include sexual orientation.

Hate Crimes

When the Michigan Ethnic Intimidation Act (EIA) of
1988 was introduced, it included a prohibition on hate crimes motivated
by sexual orientation, but the language was removed before passage.
In 1994 the governor directed the Civil Rights Commission and the
Department of Civil Rights to establish the Bias Crime Response
Task Force to study the issue. One of the group's recommendations
was to amend the EIA to protect against crimes committed because
of the victim's actual or perceived sexual orientation and change
the act's name to the Bias Crime Act. HB 4662 would implement the
task force's recommendation and also classify a hate crime as a
felony, thereby adding up to two years of prison time or up to a
$5,000 fine to a sentence. The bill is pending; if passed, Michigan
would become the 26th state to adopt anti-gay hate-crime legislation.

Gay and lesbian rights entities, such as the Triangle
Foundation and the Human Rights Campaign, believe HB 4662 is necessary
because hate violence against gays and lesbians is increasing in
Michigan, up 36 percent in 2000. They cite numerous studies conducted
by the U.S. Department of Justice and others that show that gays
and lesbians are the most frequent victims of bias-motivated criminal
activity. Opponents say a crime is a crime and should be prosecuted
without regard toor special consideration forthe type
of motivation or victim.

Racial Profiling

There is serious concern about racial profiling. In
1999 the Michigan Civil Rights Commission adopted a policy position
encouraging the collection of racial data for the purpose of determining
problem areas with respect to racial profiling.

Sensitivity to the issue has prompted many law-enforcement
agencies and jurisdictions to take steps to address it. Since 2000,
the Michigan State Police and some local police departments (including
Washtenaw County, Ann Arbor, and Grand Rapids) have been voluntarily
recording gender and race at primary traffic stops. Michigan State
University began collecting racial data on all campus police stops
in January 2001 as part of a 12-point plan to combat the racial
profiling issue before it became a problem for the university; other
steps include installing video cameras in squad cars, police-student
partnerships that give students a glimpse of police life and vice
versa, sensitivity training for officers, pamphlets informing students
of their rights when stopped by officers, and public forums on the
subject.

Antiracial profiling legislation at the state
and federal level is supported by many individual-rights supporters
and by such organizations as the ACLU and NAACP. In Michigan, civil
rights advocates believe that the practice is widespread, citing
a statewide poll conducted in 2000 by EPIC/MRA for the Michigan
State Police, which found that African-Americans are more likely
than Caucasian drivers to be stopped and ticketed.

Several bills addressing racial profiling have been
introduced in Congress in the last several years, but none has been
enacted. In terms of pending state action, HB 4927 would create
the Michigan Racial Profiling and Report Statistics Act, to define
and prohibit racial profiling and provide for monitoring and investigating
police agencies' stop-and-search patterns. The bill also would require
police to report the race of drivers in every traffic stop for at
least three years and require local police departments to provide
racial-sensitivity training as well as retraining for officers guilty
of racial profiling. Several law-enforcement organizations
denounce racial profiling, but they do not support mandated data
collection on motorist stops; they express concern about how the
data are interpreted and by whom, pointing out that there is no
proven, empirical way to analyze the data and, therefore, misinterpretation
may result.

Many organizations representing law-enforcement officers
(e.g., the National Association of Police Organizations, International
Association of Chiefs of Police, Michigan Association of Chiefs
of Police) oppose such actions as pulling over an automobile, searching
personal property, or detaining an individual solely on the basis
of his/her race, ethnicity, gender, or age. Nevertheless, many in
and outside the law-enforcement community believe that certain racial
profiling can be lawfully used as a statistical device in preventing
crimes and apprehending criminals. They cite court opinions finding,
for example, that it is legitimate to consider race or ethnic background
as part of a profile in airport-security measures. Criminal justice
experts say that law-enforcement officers always have and always
will rely in part on profiles to identify criminals, so rather than
deny that racial (and other) profiling exists, it would be more
constructive to accept its usefulness and inevitability and codify
when and how it may be used.

See also Crime and Corrections; Emergency Preparedness
and Response; Privacy.